ADMINISTRATION SERVICE AGREEMENT between MILLENNIUM INDIA ACQUISITION COMPANY INC. and
EXHIBIT
k.3
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ADMINISTRATION
SERVICE
AGREEMENT
between
MILLENNIUM
INDIA ACQUISITION COMPANY INC.
and
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INDEX
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1.
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APPOINTMENT AND DELIVERY OF
DOCUMENTS
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3
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2.
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DUTIES OF GFS
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4
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3.
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FEES AND EXPENSES
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6
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4.
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STANDARD OF CARE, INDEMNIFICATION AND
RELIANCE
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7
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5.
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EXPENSES ASSUMED AS
ADMINISTRATOR
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9
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6.
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REPRESENTATIONS AND
WARRANTIES.
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9
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7.
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CONFIDENTIALITY
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10
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8.
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PROPRIETARY INFORMATION
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10
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9.
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ADDITIONAL CLASSES
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11
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10.
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ASSIGNMENT
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11
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11.
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EFFECTIVE DATE, TERM AND
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▇▇.
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LIAISON WITH
ACCOUNTANTS
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13.
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MISCELLANEOUS
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2
MILLENNIUM
INDIA ACQUISITION COMPANY INC.
AGREEMENT made as of the 3rd
day of March 2008, by and between the Millennium India Acquisition Company Inc.,
a Delaware corporation, having its principal office and place of business at
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ (the “Fund”) and Gemini Fund
Services, LLC, a Nebraska limited liability company having its principal office
and place of business at the Hauppauge Corporate Center, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (“GFS”).
WHEREAS, the Fund is a
closed-end management investment company registered with the United States
Securities and Exchange Commission (“SEC”) under the Investment Company Act of
1940, as amended (“1940 Act”);
WHEREAS, the Fund has issued
units (consisting of one share of common stock and one warrant), common stock
and warrants (each exercisable for one share of common stock); and
WHEREAS, the Fund desires that
GFS perform certain administrative services and GFS is willing to provide those
services on the terms and conditions set forth in this Agreement;
NOW THEREFORE, in
consideration of the premises and mutual covenants contained herein, the Fund
and GFS hereby agree as follows:
1. APPOINTMENT
AND DELIVERY OF DOCUMENTS
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(a)
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The
Fund hereby appoints GFS to provide administrative services for the Fund
as described hereinafter, as administrator of the Fund for the period and
on the terms set forth in this Agreement. GFS accepts such
appointment and agrees to furnish the services herein set forth in return
for the compensation as provided in Section 3 of this
Agreement.
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(b)
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In
connection therewith the Fund has delivered to GFS copies
of:
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(i)
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the
Fund’s
Certificate of Incorporation and Bylaws (collectively, as amended from
time to time, “Organizational
Documents”);
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(ii)
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the
Fund’s most recent Registration Statement on Form S-1 and all amendments
thereto filed with the SEC pursuant to the Securities Act of 1933, as
amended (“Securities Act”) (“1933 Act Registration
Statement”);
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(iii)
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the
Fund’s notification of registration under the 1940 Act on Form N-8A as
filed with the SEC; and
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(iv)
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the
Fund’s current Prospectus (the
“Prospectus”).
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(c)
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The
Fund shall promptly furnish GFS with all amendments of or supplements to
the items listed in Section 1(b), and when filed the shall furnish GFS
with the Fund’s Registration
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3
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Statement
on Form N-2 and all amendments thereto filed with the SEC pursuant to the
1940 Act (“1940 Act Registration Statement”) and the Fund’s Statement of
Additional Information (the “Statement of Additional Information”), and
shall deliver to GFS a certified copy of the resolution of the Board of
Directors of the Fund (“Board”) appointing GFS and authorizing the
execution and delivery of this
Agreement.
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2. DUTIES
OF GFS
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(a)
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Administrative
Services. GFS may from time to time adopt procedures, or
modify its procedures, to implement the terms of this
Section. GFS shall provide the following services subject to,
and in compliance with the objectives, policies and limitations set forth
in the Fund’s most recent 1933 Act Registration Statement and most recent
1940 Act Registration Statement, instructions from the Fund, the Fund’s
Certificate of Incorporation, Bylaws, applicable laws and regulations, and
resolutions and policies implemented by the Fund’s Board of Directors (the
“Board”):
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(i)
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Oversee
the performance of administrative and professional services rendered to
the Fund by others, including its custodian, transfer agent, fund
accountant and dividend disbursing agent as well as legal, auditing,
shareholder servicing and other services performed for the
Fund;
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(ii)
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Monitor
Fund holdings and operations for compliance with the Prospectus and
Statement of Additional Information, SEC statutes, rules, regulations and
policies, and IRS taxation limitations and restrictions, provide all
periodic compliance reports to the Fund, and assist the Fund in
preparation of periodic compliance reports to the Fund, as
applicable;
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(iii)
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Prepare
and coordinate the printing of semi-annual and annual financial
statements;
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(iv)
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Prepare
selected management reports for performance and compliance analyses agreed
upon by the Fund and GFS from time to
time;
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(v)
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In
consultation with counsel to the Fund, officers of the Fund and other
relevant parties, prepare and disseminate materials for meetings of the
Board, including agendas and selected financial information as agreed upon
by the Fund and GFS from time to time; and attend and participate in Board
meetings to the extent requested by the
Board;
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(vi)
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Determine
income and capital gains available for distribution and calculate
distributions required to meet regulatory, income, and excise tax
requirements, to be reviewed by the Fund’s independent public
accountants;
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(vii)
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Review
the Fund’s federal, state, and local tax returns as prepared and signed by
the Fund’s independent public
accountants;
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(viii)
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Prepare
and maintain the Fund’s operating expense budget to determine proper
expense accruals to be charged to each Fund in order to calculate its
daily net asset value;
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4
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(ix)
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In
consultation with counsel for the Fund, assist in and oversee the
preparation, filing, printing and where applicable, dissemination to
shareholders of the
following:
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amendments
to the Fund’s 1933 Act Registration Statement and 1940 Act Registration
Statement;
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any
other SEC filings with respect to the Fund’s then current registration
statement(s) that may be required from time to
time;
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periodic
reports to the Directors, shareholders and the SEC, including but not
limited to annual reports and semi-annual
reports;
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proxy
materials; and
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reports
to the SEC on Forms N-SAR, N-CSR, N-PX and
N-Q.
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(x)
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Coordinate
the Fund’s annual shareholder meeting
by:
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providing
a site for and holding the meeting;
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providing
GFS personnel to serve as named
proxies;
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preparing
the meeting script and minutes, all documents in connection with the
tabulation of the vote and actions of appointed proxies, Oath of Inspector
of Election, etc.,
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coordinate
efforts with proxy solicitors; and
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vote
tabulation;
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(xi)
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Coordinate
the Fund’s annual audit by:
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assisting
the Fund’s independent auditors, or, upon approval of the Fund, any
regulatory body, in any requested review of the Fund’s accounts and
records;
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providing
appropriate financial schedules (as requested by the Fund’s independent
public accountants or SEC examiners);
and
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providing
office facilities as may be
required.
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(xii)
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After
consultation with counsel for the Fund, determine the jurisdictions in
which Shares of the Fund may be required to be registered or qualified for
sale; register, or prepare applicable notice or other filings with respect
to, the Shares with the various state and other securities commissions,
provided that all fees for the registration of Shares or for qualifying or
continuing the qualification of the Fund shall be paid by the
Fund;
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(xiii)
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Monitor
sales of Shares and ensure that the Shares are properly and duly
registered with the SEC;
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(xiv)
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Oversee
the calculation of performance data for dissemination to
information services covering the investment company industry,
for sales literature of the Fund and other appropriate
purposes;
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(xv)
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Prepare,
or cause to be prepared, expense and financial reports, including Fund
budgets, expense reports, pro-forma financial statements, expense and
profit/loss projections and fee waiver/expense reimbursement projections
on a periodic basis;
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(xvi)
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Prepare
authorization for the payment of Fund expenses and pay, from Fund assets,
all bills of the Fund;
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(xvii)
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Provide
information typically supplied in the investment company industry to
companies that track or report price, performance or other information
with respect to investment
companies;
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(xviii)
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Assist
the Fund in the selection of other service providers, such as independent
accountants, transfer agent, fund accountants, proxy solicitors and
perform such other record keeping, reporting and other tasks as may be
specified from time to time in the procedures adopted by the Board,
provided, that GFS need not begin performing any such task except upon
sixty (60) days’ written notice and pursuant to mutually acceptable
compensation agreements;
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(xix)
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Such
other services and assistance relating to the affairs of the Fund as the
Fund may, from time to time, reasonably request pursuant to mutually
acceptable compensation
agreements;
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(xx)
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Coordinate
compliance with AMEX/NASDAQ reporting, notice and other requirements,
including any required
submissions/filings;
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(xxi)
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Prepare
press releases with respect to dividends/distributions and other required
press communications and coordinate the approval and release process with
the Fund and Businesswire (or such other press service that meets the
legal requirements for providing notice to shareholders);
and
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(xxii)
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Calculate
the daily market discount/premium to the Fund’s
NAV.
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(b)
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In
order for GFS to perform the services required by this Section 2, the Fund
(i) shall cause all service providers to the Fund to furnish any and all
information to GFS, and assist GFS as may be required and (ii) shall
ensure that GFS has access to all records and documents maintained by the
Fund or any service provider to the
Fund.
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(c)
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GFS
shall, for all purposes herein, be deemed to be an independent contractor
and shall, unless otherwise expressly provided or authorized, have no
authority to act for or represent the Fund in any way or otherwise be
deemed an agent of the Fund.
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(d)
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Whenever,
in the course of performing its duties under this Agreement, GFS
determines, on the basis of information supplied to GFS by the Fund, that
a violation of applicable law has occurred, or that, to its knowledge, a
possible violation of applicable law may have
occurred
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or,
with the passage of time, could occur, GFS shall promptly notify the Fund
and its counsel of such violation.
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3.
FEES
AND EXPENSES
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(a)
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Fees. As
compensation for the services provided by GFS to the Fund pursuant to this
Agreement, the Fund, on behalf of each Fund, agrees to pay GFS the fees
set forth in Schedule A hereto. Fees will begin to accrue on the latter of
the date of this Agreement or the date GFS begins providing services to
the Fund. For the purpose of determining fees calculated as a
function of the Fund’s assets, the value of the Fund’s assets and net
assets shall be computed as required by generally accepted accounting
principles and as provided in the Valuation Procedures adopted by
Board. GFS will render, after the close of each month in which
services have been furnished, a statement reflecting all of the charges
for such month; and GFS’s fee shall not be subject to monthly pro
ration.
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(b)
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Expenses. GFS
will bear its own expenses, in connection with the performance of the
services under this Agreement, except as provided herein or as agreed to
by the parties. In addition to the fees paid under subsection
(a), the Fund agrees to reimburse GFS for out-of-pocket expenses or
advances incurred by GFS for the items set out in Schedule A and any other
reasonable expenses incurred by GFS at the request or with the consent of
the Fund, confirmed in writing in
advance.
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(c)
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Fee
Changes. The fees, out-of pocket expenses and advances
identified in subsections (a) and (b) above may only be changed subject to
prior written approval by the Fund.
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(d)
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Due
Date. All fees under subsection (a) above are due and
payable within five (5) days of receipt of invoice. All
expenses under subsection (b) above are due and payable within ten (10)
days of receipt of invoice.
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(e)
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Accounts and Records.
The
accounts and records maintained by GFS shall be the property of the Fund,
and shall be surrendered to the Fund, at the expense of the Fund, promptly
upon request by the Fund, provided that all service fees and expenses
charged by GFS in the performance of its duties hereunder have been fully
paid to the satisfaction of GFS, in the form in which such accounts and
records have been maintained or preserved. GFS agrees to
maintain a back up set of accounts and records of the Fund (which back-up
set shall be updated on at least a weekly basis) at a location other than
that where the original accounts and records are stored. GFS
shall assist the Fund’s independent auditors, or, upon approval of the
Fund, any regulatory body, in any requested review of the Fund’s accounts
and records. GFS shall preserve the accounts and records, as
they are required to be maintained and preserved by Rule
31a-1.
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(f)
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Personnel. GFS
shall furnish at its own expense the executive, supervisory and clerical
personnel necessary to perform its obligations under this Agreement. GFS
shall also pay all compensation, if any, of officers of the Fund who are
affiliated persons of GFS or any affiliated corporation of GFS; provided,
however, that unless otherwise specifically provided, GFS shall not be
obligated to pay the compensation of any employee of the Fund retained by
the Board of Directors of the Fund to perform services on behalf of the
Fund.
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4.
STANDARD
OF CARE, INDEMNIFICATION AND RELIANCE
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(a)
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Standard of Care. GFS
shall be held to the exercise of reasonable care in carrying out the
provisions of the Agreement, but shall be without liability to the Fund
for any action taken or omitted by it in good faith without gross negligence,
bad faith, willful misconduct or reckless disregard of its duties
hereunder.
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(b)
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Indemnification of
GFS. The Fund shall indemnify and hold GFS harmless from
and against any and all losses, damages, costs, charges, reasonable
counsel fees, payments, expenses and liability attributable to the Fund’s
refusal or failure to comply with the terms of this Agreement, or
attributable to the Fund’s lack of good faith, gross negligence or willful
misconduct with respect to the Fund’s performance under or in connection
with this Agreement. GFS shall not be liable for and shall be
entitled to rely upon and may act upon information, records and reports
generated by the Fund, advice of the Fund, or of counsel for the Fund and
upon statements of the Fund’s independent accountants, and shall be
without liability for any action reasonably taken or omitted pursuant to
such records and reports or advice, provided that such action is not, to
the knowledge of GFS, in violation of applicable federal or state laws or
regulations, and provided further that such action is taken without gross
negligence, bad faith, willful misconduct or reckless disregard of its
duties, and the Fund shall hold GFS harmless in regard to any liability
incurred by reason of the inaccuracy of such information or for any action
reasonably taken or omitted in good faith reliance on such
information.
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(c)
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Indemnification of the
Fund. GFS shall indemnify and hold the Fund harmless from and
against any and all losses, damages, costs, charges, reasonable counsel
fees, payments, expenses and liability arising out of or attributable to
GFS’ refusal or failure to comply with the terms of this Agreement, or
which arise out of GFS’ lack of good faith, gross negligence or willful
misconduct with respect to GFS’ performance under or in connection with
this Agreement.
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(d)
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Reliance. Except
to the extent that GFS may be liable pursuant to this Section 4, GFS shall
not be liable for any action taken or failure to act in good faith in
reliance upon:
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(i)
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advice
of the Fund or of counsel to the
Fund;
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(ii)
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any
oral instruction which it receives and which it reasonably believes in
good faith was transmitted by the person or persons authorized by the
Board to give such oral instruction pursuant to procedures mutually agreed
to by GFS and the Fund;
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(iii)
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any
written instruction or certified copy of any resolution of the Board, and
GFS may rely upon the genuineness of any such document, copy or facsimile
thereof reasonably believed in good faith by GFS to have been validly
executed; or
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(iv)
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any
signature, instruction, request, letter of transmittal, certificate,
opinion of counsel, statement, instrument, report, notice, consent, order,
or other document reasonably believed in good faith by GFS to be genuine
and to have been signed or presented by the Fund or other proper party or
parties;
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and GFS
shall not be under any duty or obligation to inquire into the validity or
invalidity or authority or lack of authority of any statement, oral or written
instruction, resolution, signature,
8
request,
letter of transmittal, certificate, opinion of counsel, instrument, report,
notice, consent, order, or any other document or instrument which GFS reasonably
believes in good faith to be genuine.
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(e)
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Errors of
Others. GFS shall not be liable for the errors of other
service providers to the Fund, including the errors of pricing services
(other than to pursue all reasonable claims against the pricing service
based on the pricing services’ standard contracts entered into by GFS) and
errors in information provided by an investment adviser (including prices
and pricing formulas and the untimely transmission of trade information)
or custodian to the Fund; except or unless any GFS action or inaction by
GFS is a direct or proximate cause of the
error.
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5. EXPENSES
ASSUMED AS ADMINISTRATOR
Except as
otherwise specifically stated in this Agreement, GFS shall pay all expenses
incurred by it in performing its services and duties as
administrator. The Fund will bear all other expenses to be incurred
in the operation of the Fund including:
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(a)
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taxes;
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(b)
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interest;
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(c)
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brokerage
fees and commissions, if any;
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(d)
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fees
for Directors who are not officers, directors, partners, employees or
holders of five percent (5%) or more of the outstanding voting securities
of GFS or any of their affiliates;
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(e)
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Securities
and Exchange Commission fees;
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(f)
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salaries
of the Fund’s employees;
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(g)
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charges
of custodians;
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(h)
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transfer
and dividend disbursing agents’
fees;
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(i)
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certain
insurance premiums;
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(j)
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outside
auditing and legal expenses;
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(k)
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costs
of maintaining Fund existence;
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(l)
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costs
attributable to shareholder services, including without limitation
telephone and personnel expenses;
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(m)
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costs
of preparing and printing Prospectuses for regulatory
purposes;
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(n)
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costs
of shareholders’ reports and Fund
meetings;
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(o)
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Fund
legal fees; and
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(p)
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any
extraordinary expenses.
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6. REPRESENTATIONS
AND WARRANTIES.
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(a)
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Representations of
GFS. GFS represents and warrants to the Fund
that:
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(i)
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it
is a limited liability company duly organized and existing and in good
standing under the laws of the State of
Nebraska;
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(ii)
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it
is empowered under applicable laws and by its organizational documents to
enter into this Agreement and perform its duties under this
Agreement;
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(iii)
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it
has access to the necessary facilities, equipment, and personnel to
perform its duties and obligations under this Agreement;
and
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(iv)
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it
is registered as a transfer agent under Section 17A of the Securities
Exchange Act of 1934 and shall continue to be registered throughout the
remainder of this Agreement.
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(b)
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Representations of the
Fund. The Fund represents and warrants to GFS
that:
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(i)
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it
is a corporation duly organized and existing and in good standing under
the laws of the State of
Delaware;
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(ii)
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it
is empowered under applicable laws and by its Organizational Documents to
enter into and perform this
Agreement;
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(iii)
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all
proceedings required by said Organizational Documents have been taken to
authorize it to enter into and perform this
Agreement;
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(iv)
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it
is a closed-end management investment company registered under the 1940
Act; and
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(v)
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a
registration statement under the Securities Act of 1933 is currently
effective and will remain effective, and appropriate state securities law
filings as required, have been or will be made and will continue to be
made, with respect to all Shares of the Fund being offered for
sale.
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7. CONFIDENTIALITY
GFS and
the Fund agree that all books, records, information, and data pertaining to the
business of the other party which are exchanged or received pursuant to the
negotiation or the carrying out of this Agreement shall remain confidential, and
shall not be voluntarily disclosed to any other person, except that GFS
may:
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(a)
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prepare
or assist in the preparation of periodic reports to shareholders and
regulatory bodies such as the SEC;
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(b)
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provide
information typically supplied in the investment company industry to
companies that track or report price, performance or other information
regarding investment companies;
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(c)
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release
such other information as approved in writing by the Fund, which approval
shall not be unreasonably withheld and may not be withheld where GFS, upon reasonable belief or upon
the advice of counsel has reasonable belief, may be exposed to
civil or criminal liability or proceedings for failure to release the
information, when requested to divulge such information by duly
constituted authorities or when so requested by the Fund;
and
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(d)
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In
accordance with Section 248.1 of Regulation S-P (17 CFR 248.1 – 248.30)
(“Reg S-P”), GFS will not directly, or indirectly through an affiliate,
disclose any non-public personal information as defined in Reg S-P,
received from the Fund to any person that is not affiliated with the Fund
or with GFS and provided that any such information disclosed to an
affiliate of GFS shall be under the same limitations on
non-disclosure.
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(e)
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Or
otherwise permitted or required by
law.
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8. PROPRIETARY
INFORMATION
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(a)
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Proprietary Information of
GFS. The Fund acknowledges that the databases, computer programs,
screen formats, report formats, interactive design techniques, and
documentation manuals maintained by GFS on databases under the control and
ownership of GFS or a third party constitute copyrighted, trade secret, or
other proprietary information (collectively, “GFS Proprietary
Information”) of substantial value to GFS or the third party. The Fund
agrees to treat all Proprietary Information as proprietary to GFS and
further agrees that it shall not divulge any Proprietary Information to
any person or organization except as may be provided under this
Agreement.
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(b)
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Proprietary Information of the
Fund. GFS acknowledges that the Shareholder list and all
information related to shareholders furnished to GFS by the Fund or by a
shareholder in connection with this Agreement (collectively, “Customer
Data”) all information regarding the Fund portfolio, arrangements with
brokerage firms, compensation paid to or by the Fund, trading strategies
and all such related information (collectively, “Fund Proprietary
Information”) constitute proprietary information of substantial value to
the Fund. In no event shall GFS Proprietary Information be deemed Fund
Proprietary Information or Customer Data. GFS agrees to treat all Fund
Proprietary Information and Customer Data as proprietary to the Fund and
further agrees that it shall not divulge any Fund Proprietary Information
or Customer Data to any person or organization except as may be provided
under this Agreement or as may be directed by the Fund or as may be duly
requested by regulatory
authorities.
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(c)
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Each
party shall take reasonable efforts to advise its employees of their
obligations pursuant to this Section 8. The obligations of this
section shall survive any earlier termination of this
Agreement.
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9. ADDITIONAL
CLASSES
In the
event that the Fund establishes one or more classes of Shares after the
effectiveness of this Agreement, such classes of Shares, as the case may be,
shall become classes under this Agreement. However, either GFS or the Fund may
elect in writing not to make any such classes subject to this
Agreement.
10. ASSIGNMENT
This
Agreement shall extend to and shall be binding upon the parties hereto and their
respective successors and assigns; provided, however, that this
Agreement shall not be assignable by the Fund without the prior written consent
of GFS.
GFS
may, subject to no less than 60 days prior written notice to the Fund,
subcontract any or all of its responsibilities pursuant to this Agreement to one
or more corporations, trusts, firms, individuals or associations, which may or
may not be affiliated persons of GFS and which agree to comply with the terms of
this Agreement; provided,
however, that any such subcontracting shall not relieve GFS of its
responsibilities hereunder. GFS may pay those persons for their
services, but no such payment will increase GFS’ compensation from the
Fund.
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11. EFFECTIVE
DATE, TERM AND TERMINATION
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(a)
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Effective
Date. This Agreement shall become effective on the date
first above written.
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(b)
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Term. This
Agreement shall remain in effect for a period of three (3) years from the
date of its effectiveness and shall continue in effect for successive
twelve-month periods provided that such continuance is specifically
approved at least annually by a majority of the Directors of the
Fund.
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(c)
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Termination. This
Agreement can be terminated upon ninety (90) days prior written notice by
either party. Compensation due GFS and unpaid by the Fund upon
such termination shall be due on the date of termination or after the date
that the provision of services ceases, whichever is later. In
the event of termination, GFS agrees that it will cooperate in the smooth
transition of services and to minimize disruption to the Fund and its
shareholders, including liaison with the Fund
accountants.
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(d)
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Reimbursement of GFS’
Expenses. If this Agreement is terminated, GFS shall be
entitled to collect from the Fund, in addition to the compensation
described under Section 3 hereof, the amount of all of GFS’ reasonable
labor charges and cash disbursements for services in connection with GFS’
activities in effecting such termination (“Termination Expenses”),
including without limitation, the labor costs and expenses associated with
the de-conversion of the Fund records from its computer systems, and the
delivery to the Fund and/or its designees of the Fund’s property, records,
instruments and documents, or any copies thereof. A written
statement of such Termination Expenses shall be provided to the Fund prior
to payment by the Fund. Subsequent to such termination, for a
reasonable fee, GFS will provide the Fund with reasonable access to all
Fund documents or records, if any, remaining in its
possession. In the event of termination, GFS agrees that it
will cooperate in the smooth transition of services and to minimize
disruption to the Fund and its
Shareholders.
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(e)
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Survival of Certain
Obligations. The obligations of Sections 3, 4, 7, 8, 11
and 12 shall survive any termination of this
Agreement.
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12. LIAISON
WITH ACCOUNTANTS
GFS shall
act as liaison with the Fund’s independent public accountants and shall provide
account analyses, fiscal year summaries, and other audit-related
schedules. GFS shall take all reasonable action in the performance of
its duties under this Agreement to assure that the necessary information is made
available to such accountants for the expression of their opinion, as required
by the Fund.
13.
MISCELLANEOUS
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(a)
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Amendments. No
provisions of this Agreement may be amended or modified in any manner
except by a written agreement properly authorized and executed by both
parties hereto.
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(b)
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Governing
Law. This Agreement shall be construed and the
provisions thereof interpreted under and in accordance with the laws of
the State of New York.
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(c)
|
Entire
Agreement. This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement
with respect to the subject matter hereof whether oral or
written.
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12
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(d)
|
Counterparts. The
parties may execute this Agreement on any number of counterparts, and all
of the counterparts taken together shall be deemed to constitute one and
the same instrument.
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(e)
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Severability. If
any part, term or provision of this Agreement is held to be illegal, in
conflict with any law or otherwise invalid, the remaining portion or
portions shall be considered severable and not be affected by such
determination, and the rights and obligations of the parties shall be
construed and enforced as if the Agreement did not contain the particular
part, term or provision held to be illegal or
invalid.
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(f)
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Force
Majeure. In the event either party is unable to perform
its obligations under the terms of this Agreement because of acts of God,
strikes, equipment or transmission failure or damage reasonably beyond its
control, or other causes reasonably beyond its control, such party shall
not be liable for damages to the other party resulting from such failure
to perform or otherwise from such
causes.
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(g)
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Arbitration. Any
controversy or claim arising out of, or related to, this Agreement, its
termination or the breach thereof, shall be settled by binding arbitration
by three arbitrators (or by fewer arbitrator(s), if the parties
subsequently agree to fewer) in the City of New York, in accordance with
the rules then obtaining of the American Arbitration Association, and the
arbitrators’ decision shall be binding and final, and judgment upon the
award rendered may be entered in any court having jurisdiction
thereof.
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(h)
|
Headings. Section
and paragraph headings in this Agreement are included for convenience only
and are not to be used to construe or interpret this
Agreement.
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(i)
|
Notices. All
notices and other communications hereunder shall be in writing, shall be
deemed to have been given when received or when sent by telex or
facsimile, and shall be given to the following addresses (or such other
addresses as to which notice is
given):
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To
the Fund:
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To
GFS:
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▇▇▇▇▇
▇▇▇▇▇▇
|
▇▇▇▇▇▇
▇▇▇▇▇▇
|
|
President
|
President
|
|
Millennium
India Acquisition Company Inc.
|
Gemini
Fund Services, LLC
|
|
▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
|
|
Phone
(▇▇▇) ▇▇▇-▇▇▇▇
|
Phone:
(▇▇▇) ▇▇▇-▇▇▇▇
|
|
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
|
| With a copy to: | ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Esq.
Ropes
& ▇▇▇▇ LLP
One
Metro Center, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
(202)
508-4812
▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
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(j)
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Representation of
Signatories. Each of the undersigned expressly warrants
and represents that they have full power and authority to sign this
Agreement on behalf of the party indicated and that their signature will
bind the party indicated to the terms
hereof.
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13
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed in
their names and on their behalf by and through their duly authorized persons, as
of the day and year first above written.
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MILLENNIUM
INDIA ACQUISITION
COMPANY
INC.
By:
▇▇▇▇▇
▇▇▇▇▇▇
Title:
President
Date:
|
GEMINI FUND SERVICES,
LLC
By:
▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
Date:
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14
Schedule
A
FEES AND
EXPENSES
Annual
fee for the Fund, which is the greater of:
|
$40,000
per fund portfolio,
|
Or
|
10
basis points or 0.10% on first $100 million of net assets;
8
basis points or 0.08% on next $250 million of net assets;
6
basis points or 0.06% on net assets greater than $250
million
|
Plus
$250 per
quarter for Fin 48 Compliance
$3,000
annually for conducting the annual Shareholder Meetings;
$150 per
Section 16 filing (Forms 3, 4 and 5)
Plus
Out-of-Pocket Expenses, which include, but are not limited to:
|
Postage,
Courier and Stationery
Programming,
Special Reports
Proxies,
Insurance
▇▇▇▇▇
filings
Chief
Compliance Officer Fees (CCO)
Retention
of records
Federal
and State regulatory filing fees
Certain
insurance premiums
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Travel
(as requested by the Fund)
Expenses
related to Board of Directors’ meetings
Auditing
and legal expenses
Blue
Sky conversion expenses (if necessary)
NASDAQ
charges
All
other out-of-pocket expenses
(Fees
are billed monthly)
|
Discount: for the
first 12 months from the date of this agreement the fees above shall be reduced
by 10%.
STATE
REGISTRATION (BLUE SKY) FEES (IF APPLICABLE):
The fees
enumerated above include the initial state registration, renewal and maintenance
of registrations (as detailed in Paragraph 1(l) DUTIES OF THE ADMINISTRATOR) for
three (3) states. Each additional state registration requested will be subject
to the following fees per fund:
Initial
registration ............... $295.00
Registration
renewal ...........$150.00
Sales
reports (if required) ...$ 25.00
All
special reports and/or analyses requested by the Fund in writing and provided by
GFS not in the ordinary course shall be subject to an additional charge, agreed
upon in advance, based upon the following rates:
GFS
Senior Staff…..$150.00 per hour
GFS
Junior Staff…..$ 75.00 per hour
MIS
Staff ………….$200.00 per hour
15